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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord Johnston
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[2007] HCJAC 8
Appeal No: XC788/04
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in the appeal
of
D A
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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For the appellant: Shead; Russel & Aitken, Denny
For the Crown: Prentice, Sol Adv, AD;
Crown Agent
30 January 2007
The conviction
[1] On 6
September 2004 the appellant was convicted at Falkirk Sheriff Court on four charges of lewd, indecent
and libidinous practices. With the
deletions made by the Crown and the amendments made by the jury, the
convictions were returned in the following terms:
"(1) on a number of occasions between 1 January
1991 and 26 September 1995, both dates inclusive, at [locus 1], you [DA] did
use lewd, indecent and libidinous practices and behaviour towards [MA], your step-daughter ... then aged
between 7 years and 12 years ... and did remove her underpants ... touch her naked
vagina, insert your finger into her vagina, lick her vagina, induce her to
touch your naked penis, induce her to masturbate you, and handle her breasts on
top of her clothing.
(2) on a number of occasions between 27 September
1995 and 31 March 1996, both dates inclusive at [locus 2], you [DA] did
use lewd, indecent and libidinous practices and behaviour towards [MA] ... your step-daughter, a girl then
above the age of 12 years and under the age of 16 years and did remove her
underpants ... touch her naked vagina, insert your finger into her vagina, lick
her vagina, induce her to touch your naked penis, induce her to masturbate you,
and handle her breasts on top of her clothing;
CONTRARY to the Sexual Offences (Scotland) Act 1976, Section 5.
(3) on a number of occasions between 1 April 1996
and 26 September 1999, both dates inclusive, at [locus 2], you [DA] did
use lewd, indecent and libidinous practices and behaviour towards [MA] ... your step-daughter, a girl then of
or over the age of 12 years and under the age of 16 years, and did remove her
underpants ... touch her naked vagina, insert your finger into her vagina, lick
her vagina, induce her to touch your naked penis, induce her to masturbate you,
and handle her breasts on top of her clothing;
CONTRARY to the Criminal Law (Consolidation)(Scotland) Act 1995,
Section 6.
(004) between 14 October 1994 and 31 March 1996,
both dates inclusive, at [locus 2]
you [DA] did use lewd, indecent and
libidinous practices and behaviour towards [DK],
born 14 January 1981, your step-daughter, a girl then above the age of 12 years
and under the age of 16 years, and did take her hand and place it inside your
underpants and did induce her to masturbate you; CONTRARY to the Sexual Offences (Scotland)
Act 1976, Section."
The facts
[2] The
complainers are sisters. The appellant was
their step-father. They had two
half-sisters of whom the appellant was the father.
[3] MA said that
the first instance of abuse occurred at the locus libelled in charge (1) when
she was about eight or nine years old. Her
mother was in hospital at the time. She
became distressed. The appellant took
her to bed to comfort her. She awoke to
find him putting his hands inside her pants and touching her vagina. When the family moved to the locus libelled
in charges (2), (3) and (4), there was a regular pattern of abuse by the
appellant of the kinds libelled, usually when he returned drunk on Saturday
nights after an evening at the local public house with her mother. Since he was often violent to her mother on
such occasions, she took to joining them in the living room when they came home
and remaining there until the appellant fell asleep or her mother went to
bed. The incidents occurred when her
mother had gone to bed. MA was asked how
many times the appellant made her masturbate him. She replied "Quite a lot. I'm not sure how many." This was when she was at high school
(Transcript, p 49). The abuse took place
at least twice a month until the appellant left the family home when she was 15.
[4] MA's elder
sister DK spoke to the single incident libelled in charge (4). She thought that it occurred when she was
14. She was babysitting for one of her
half-sisters, SA, whom she took to sleep in her mother's bed. In evidence in chief she said that she was
asleep when the appellant and her mother came home. They came into the bedroom. They got into the bed. Her mother fell asleep. When asked what happened when the appellant got
into the bed beside her, she described the acts libelled (Transcript, pp
10-12). She said that while he was doing
these things, "I told him that it was me a few times." She got no response from him when she said
that. She thought that he was just drunk
and was mistaking her for her mother. After
a few minutes he either fell asleep or pretended to be sleeping and she got out
of the bed (ibid, p 13).
The observations of the
procurator fiscal depute on the law
[5] At the outset
of her speech the procurator fiscal depute said that she would mention a few
legal points, but that the sheriff was the master of the law and that if she or
counsel for the defence should mention the law and get anything wrong, it would
be corrected by the sheriff in his charge (Transcript, pp 2-3). Later, she addressed the jury on the question
of reasonable doubt in the following terms.
"Reasonable
doubt, ladies and gentlemen, is based on a reason arising from the
evidence. It cannot be something trivial
or fanciful. It has to be the kind of
doubt for example in your ordinary lives that would stop you from putting an
offer in on a house or from accepting a job offer. It has to be a feeling in the back of your
mind that makes you think no, this is just not quite right, there is something
about it not right. So what we have to
look at, if we look at it the other way round, you must be reasonably certain one,
that there was a crime committed and two, that the accused was the person who
committed that crime" (Transcript, p 5).
It is not disputed that these observations embodied two
errors. First, a reasonable doubt need
only be one that would cause a juror to hesitate or pause before making an
important decision in the conduct of his own affairs, not one that would cause
him to stop. Second, the standard of
proof beyond a reasonable doubt is not the same as that of reasonable certainty
(cf CWA v HM Adv, 2003 SCCR 154).
The sheriff's charge
[6] The sheriff
charged the jury on the question of standard of proof in terms that counsel for
the appellant does not criticise (Charge, pp 7-8). He expressly corrected the first of the
erroneous comments of the procurator fiscal depute on the subject.
[7] In dealing
with charge (4) the sheriff reminded the jury of DK's evidence of the
possibility of mistaken identity. He
said the following:
"And you may not have any difficulty in coming to a
conclusion as to intent in relation to charges 1, 2 and 3, spoken to by [MA].
But the issue has been put in focus by Mr Moggach in relation to charge
4. You will remember [DK] said quite candidly that she
wondered whether he had mistaken her for her mother.
Now, you will remember the
circumstances that she told us about on that occasion. She said she had been in bed with [SA], her half-sister. They had both fallen asleep. Their parents had come in and had got into
bed. When they went to sleep of course
there was only [SA] and [DK] were in the bed, and they were
apparently side by side.
Then when [DK] woke up, telling us that she found her stepfather engaged in
this behaviour towards her, she was on the edge of the bed, he was next to her,
then [SA] and then [DK's] mother.
Now, that is the context in which
you must consider whether [the appellant]
intended an assault upon [DK] or
whether he thought that the person next to him was in fact his wife. And you may consider that the evidence is
that he placed himself between [DK]
and [SA], and that his wife was at
the other side of the bed, with [SA]
between him and her. But these are
matters for you to consider, ladies and gentlemen" (Charge, pp 23-24).
Submissions for the
appellant and our conclusions
The applicability of the Moorov principle
[8] Counsel for
the appellant submitted that the offences to which MA spoke were not related
sufficiently closely to the single offence to which DK spoke to entitle the
jury to apply the Moorov principle. MA spoke to numerous incidents occurring
regularly over a period of years, all but one of which occurred in the living
room. DK spoke to a single incident that
occurred in bed.
[9] We were at
first concerned by the preliminary question whether DK had given evidence of
the commission by the appellant of the offence libelled, particularly since she
said that the appellant was drunk and that she thought that he was mistaking
her for her mother. We have come to the
conclusion that there was sufficient in the evidence of DK to entitle the jury
to conclude that the appellant knew that it was the complainer whom he was
touching and that he deliberately committed the acts libelled. We have in mind particularly DK's evidence
that she told him a few times that it was she whom he was touching, but that he
did not respond.
[10] The question
then is whether the evidence of DK was capable of corroborating the evidence of
MA on the other charges. In our opinion,
it was. The fact that it involved only
one incident did not prevent it from corroborating the course of conduct spoken
to by MA (S(NK) v HM Adv, 2006 SCCR 70). Both of the complainers were the appellant's
step-daughters. Although all but one of
the incidents spoken to by MA occurred in the living room, the first of them
occurred in the bed of her mother and the appellant, as in the case of DK. Many of the acts committed against MA
involved her having to masturbate the appellant, as in the case of DK. Acts of that kind occurred when the
complainers were at a similar age. We
reject this ground of appeal.
Directions on standard of proof.
[11] Counsel for
the appellant submitted that since the procurator fiscal depute had erred in
her definition of reasonable doubt in two material respects, the sheriff ought
expressly to have dealt with both errors.
[12] In our
opinion, it would be no bad thing if those who prosecute and defend were to
refrain from addressing juries unnecessarily on points of law, particularly
since they so often get them wrong. Such
forays into the province of the court create a serious risk of confusion and
make the task of the trial judge or sheriff even more difficult. It would have been quite sufficient if the
procurator fiscal depute had told the jury that the Crown had to satisfy the
standard of proof beyond reasonable doubt and had left it to the sheriff to
explain to the jury what that meant.
[13] The sheriff expressly
corrected the first of the errors of the procurator fiscal depute, but not the
second (Charge, p 8); but we do not regard that as a misdirection. The sheriff explained at the outset the
respective functions of judge and jury. The
procurator fiscal depute herself had warned the jury that they must follow the
directions of the sheriff on matters of law.
In our view, the sheriff was entitled to make the judgment that he
should comment on only the more obvious of her two errors, on the view that his
own directions on reasonable doubt would be a sufficient safeguard in the
circumstances. He himself gave accurate
directions on the subject. We reject
this ground of appeal.
Directions on honest belief
[14] Counsel for
the appellant submitted that the sheriff erred in failing to give the jury
express directions on charge (4) on the question of error arising from the
appellant's honest belief as to the identity of the person whom he was touching.
[15] The trial
judge or sheriff must always give directions on each substantive line of defence;
but in our opinion the sheriff did not have to treat the evidence of DK on this
point as he would have treated a substantive defence of honest error. DK was merely expressing the subjective interpretation
of the appellant's conduct that she made at the time. She did not provide any objective evidence
from which the jury could conclude that the appellant himself was in error as
to the identity of the person whom he was touching. On the contrary, she said that despite her
repeatedly saying to him that it was she and not her mother whom he was
touching, he carried on. The appellant
did not give evidence. In these
circumstances, we do not consider that the sheriff was under any obligation to
direct the jury on the question of absence of mens rea by reason of the appellant's honest belief that he was
touching his wife. However, the sheriff
did not overlook the point. He dealt
with the possibility of honest belief, if it was an issue at all, more than
adequately in the passage that we have quoted.
We reject this ground of appeal.
Disposal
[16] We shall
refuse the appeal.
